Rule2024-27940
Air Plan Partial Approval and Partial Disapproval; North Dakota; Regional Haze State Implementation Plan for the Second Implementation Period
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 2, 2024
Effective
January 2, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is partially approving and partially disapproving a regional haze state implementation plan (SIP) revision submitted by the State of North Dakota on August 11, 2022 (North Dakota's 2022 SIP submission) to address applicable requirements under the Clean Air Act (CAA) and the EPA's Regional Haze Rule (RHR) for the regional haze program's second implementation period. The EPA is taking this action pursuant to the CAA.
Full Text
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<title>Federal Register, Volume 89 Issue 231 (Monday, December 2, 2024)</title>
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[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Rules and Regulations]
[Pages 95126-95131]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27940]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2023-0495; FRL-12052-02-R8]
Air Plan Partial Approval and Partial Disapproval; North Dakota;
Regional Haze State Implementation Plan for the Second Implementation
Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is partially
approving and partially disapproving a regional haze state
implementation plan (SIP) revision submitted by the State of North
Dakota on August 11, 2022 (North Dakota's 2022 SIP submission) to
address applicable requirements under the Clean Air Act (CAA) and the
EPA's Regional Haze Rule (RHR) for the regional haze program's second
implementation period. The EPA is taking this action pursuant to the
CAA.
DATES: This rule is effective January 2, 2025.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R08-OAR-2023-0495. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Joe Stein, Air and Radiation Division,
EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado
80202-1129, telephone number: (303) 312-7078, email address:
<a href="/cdn-cgi/l/email-protection#fb888f9e9295d59194889e8b93bb9e8b9ad59c948d"><span class="__cf_email__" data-cfemail="255651404c4b0b4f4a5640554d654055440b424a53">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
Table of Contents
I. What is being addressed in this document?
II. Summary of the Proposed Action, Public Comments, and the EPA's
Reasons for Final Action
III. Final Action
IV. Statutory and Executive Order Reviews
I. What is being addressed in this document?
The EPA is partially approving and partially disapproving North
Dakota's regional haze plan for the second planning period.\1\ As
required by section 169A of the CAA, the RHR calls for State and
Federal agencies to work together to improve visibility in 156 national
parks and wilderness areas, known as mandatory Class I Federal
areas.\2\ The rule requires the States, in coordination with the EPA,
the National Park Service, the Fish and Wildlife Service, the Forest
Service, and other interested parties, to develop and
[[Page 95127]]
implement air quality protection plans to reduce the pollution that
causes visibility impairment in mandatory Class I Federal areas.
Visibility impairing pollutants include fine and coarse particulate
matter (PM) (e.g., sulfates, nitrates, organic carbon, elemental
carbon, and soil dust) and their precursors (e.g., sulfur dioxide
(SO<INF>2</INF>), oxides of nitrogen (NO<INF>X</INF>), and, in some
cases, volatile organic compounds (VOC) and ammonia (NH<INF>3</INF>)).
As discussed in further detail in our proposed rule, in this document,
and in the accompanying Response to Comments (RTC) document, the EPA
finds that North Dakota submitted a regional haze SIP that does not
meet all the statutory and regulatory requirements for the regional
haze second planning period. The State's submission, the proposed rule,
and the RTC document can be found in the docket for this action.
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\1\ The EPA uses the terms ``implementation period'' and
``planning period'' interchangeably.
\2\ See 40 CFR part 81, subpart D.
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II. Summary of the Proposed Action, Public Comments, and the EPA's
Reasons for Final Action
On August 11, 2022, North Dakota submitted a revision to its SIP to
address regional haze for the second implementation period, in
accordance with the requirements of the CAA's regional haze program
established by CAA sections 169A and 169B and 40 CFR 51.308.
On July 10, 2024, the EPA proposed to disapprove certain provisions
of North Dakota's 2022 SIP submission.\3\ Specifically, we proposed to
disapprove the portions of North Dakota's 2022 SIP submission relating
to 40 CFR 51.308(f)(2): long-term strategy; 40 CFR 51.308(f)(3):
reasonable progress goals; and 40 CFR 51.308(i): Federal Land Manager
(FLM) consultation. We also proposed to approve the portions of North
Dakota's 2022 SIP submission relating to 40 CFR 51.308(f)(1):
calculations of baseline, current, and natural visibility conditions,
progress to date, and the uniform rate of progress (URP); 40 CFR
51.308(f)(4): reasonably attributable visibility impairment; 40 CFR
51.308(f)(5) and 40 CFR 51.308(g): progress report requirements; and 40
CFR 51.308(f)(6): monitoring strategy and other implementation plan
requirements. Consistent with section 110(k)(3) of the CAA, the EPA may
partially approve portions of a submittal if those elements meet all
applicable requirements and may disapprove the remainder so long as the
elements are fully separable. Our public comment period closed on
August 9, 2024. Our July 10, 2024, proposed rule provided background on
the requirements of the CAA and RHR, a summary of North Dakota's
regional haze SIP submittals and related EPA actions, and the EPA's
rationale for its proposed action. That background and rationale will
not be restated in full here, although we briefly summarize the reasons
for our partial disapproval of North Dakota's 2022 SIP submission in
the paragraphs that follow.
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\3\ 89 FR 56693 (July 10, 2024).
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In CAA section 169A(a)(1), Congress established the national goal
of preventing any future and remedying any existing impairment of
visibility in mandatory Class I Federal areas that results from manmade
(anthropogenic) air pollution. The core component of a regional haze
SIP submission for the second implementation period is a long-term
strategy for making reasonable progress toward meeting that national
goal. CAA section 169A(b)(2)(B), 40 CFR 51.308(f)(2). A state's long-
term strategy must address regional haze in each Class I area within
the state's borders and each Class I area outside the state that may be
affected by emissions originating from within the state. It ``must
include the enforceable emissions limitations, compliance schedules,
and other measures that are necessary to make reasonable progress, as
determined pursuant to (f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2).
The amount of progress that is ``reasonable progress'' is based on
applying the four statutory factors in CAA section 169A(g)(1)--the
costs of compliance, the time necessary for compliance, the energy and
non-air quality environmental impacts of compliance, and the remaining
useful life of any potentially affected sources \4\--in an evaluation
of potential control measures for sources of visibility impairing
pollutants, which is referred to as a ``four-factor'' analysis. In
developing its long-term strategy, the state must document the
technical basis, including modeling, monitoring, cost, engineering, and
emissions information, on which it is relying to determine the measures
that are necessary to make reasonable progress. 40 CFR
51.308(f)(2)(iii).
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\4\ CAA section 169A(g)(1); 40 CFR 51.308(f)(2)(i).
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As detailed in section 3.A. of the RTC document, the CAA authorizes
the EPA to substantively review states' SIP submissions for compliance
with the statute and EPA's regulations to ensure progress towards the
national visibility goal for Class I areas. Congress charged the EPA
with exercising ``federal oversight'' over SIP submissions and
``review[ing] all SIPs to ensure that the plans comply with the
statute.'' Oklahoma v. EPA, 723 F.3d 1201, 1204 (10th Cir. 2013); see
also id. at 1207-08 (citing CAA Sections 110(l), 110(a)(2)(J), and
169A(b)(2)). The ``EPA is left with more than the ministerial task of
routinely approving SIP submissions.'' North Dakota v. EPA, 730 F.3d
750, 761 (8th Cir. 2013). Instead, the Agency's ``review of a SIP
extends not only to whether the state considered the necessary factors
in its determination, but also to whether the determination is one that
is reasonably moored to the CAA's provisions'' and is ``based on
`reasoned analysis.' '' Id. at 761, 766 (citing Alaska Dep't of Envt.
Conservation v. EPA, 540 U.S. 461 (2004)); see also Wyoming v. EPA, 78
F.4th 1171, 1180-81 (10th Cir. 2023) (noting that ``the Act provides
for substantive and careful EPA review'' of SIP submissions and that
``the EPA does not have to accept unreasonable analyses''). For the
reasons stated in the proposed rule, this document, and in the RTC
document, the EPA concludes that North Dakota's 2022 SIP submission
does not meet all the requirements of the CAA and RHR.
As detailed at length in our proposed rule and in the RTC document,
we conclude that North Dakota's long-term strategy does not meet the
requirements of CAA section 169A(b)(2) and 40 CFR 51.308(f)(2) on two
independent grounds. First, North Dakota relied on the URP status of
in-state Class I areas and a visibility improvement threshold that is
inconsistent with the purpose of the CAA's visibility program to
unreasonably reject feasible and reasonably inexpensive controls it
evaluated under the four statutory factors at Coyote Station and
Antelope Valley. Second, North Dakota failed to consider the four
statutory factors for NO<INF>X</INF> at Coal Creek and unreasonably
rejected feasible and reasonably inexpensive controls it evaluated
under the four statutory factors at Coal Creek and Leland Olds.
Likewise, North Dakota did not meet the requirements of 40 CFR
51.308(f)(3) because the deficiencies in its long-term strategy
prevented the State from developing adequate reasonable progress goals
(RPGs). Additionally, we are disapproving North Dakota's FLM
consultation under 40 CFR 51.308(i) because compliance with that
requirement is dependent on fulfilling the substantive requirements of
40 CFR 51.308(f)(2) (long-term strategy).
During the public notice and comment period, we received 31
comments on our proposal. The full text of comments received is
included in the publicly posted docket associated with this action at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Our RTC
[[Page 95128]]
document, which is also included in the docket associated with this
action, provides detailed responses to all significant comments
received.\5\ Our RTC document is organized by topic. Therefore, if
additional information is desired concerning how we addressed a
particular comment, the reader should refer to the appropriate section
in the RTC document.
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\5\ Some commenter tables and figures are excluded from this
document.
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We received several comments on our proposed disapproval of North
Dakota's long-term strategy on the basis that North Dakota unreasonably
considered visibility benefits to reject technically feasible and
reasonably inexpensive controls based on an unreasonable interpretation
of CAA 169A to select its visibility improvement threshold that
essentially nullified the CAA 169A(g)(1) statutory factors. Below, we
provide a summary and response to this issue including North Dakota's
interpretation that a change of RPG of 1.0 deciview (dv) visibility
improvement (a change in visibility impairment visible to the naked
eye) is needed to necessitate additional controls to make ``reasonable
progress.'' This is inconsistent with the plain language and Congress'
explicitly stated national purpose of the CAA's visibility provisions.
In North Dakota's SIP, North Dakota determined that because its
visibility improvement analysis showed no ``significant'' change in
visibility after installation of potential controls, it would not be
reasonable to require any additional controls to make reasonable
progress for Coyote Station and Antelope Valley. We proposed
disapproval due to North Dakota's reliance on visibility considerations
to reject cost-effect controls at Coyote Station and Antelope Valley.
Commenters concluded that this meant the EPA was either prohibiting the
State from considering visibility in the four-factor analysis or that
we ignored North Dakota's visibility analysis. This is incorrect. The
CAA's cooperative federalism framework imposes on EPA a substantive
role in determining if a SIP is approvable. See our RTC section 3.A
Cooperative Federalism and State Discretion for a detailed explanation.
In particular, any approvable regional haze SIP must be consistent with
Congress' explicit statutory declaration of the ``national goal'' for
``the prevention of any future, and the remedying of any existing,
impairment of visibility in mandatory Class I Federal areas which
impairment results from manmade air pollution.'' Additionally, in
determining reasonable progress, states must ``consider the costs of
compliance, the time necessary for compliance, and the energy and
nonair quality environmental impacts of compliance, and the remaining
useful life of any existing source subject to such requirements.'' \6\
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\6\ CAA section 169A(a)(1), (g)(1).
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The EPA has acknowledged that a state may reasonably consider
factors beyond the explicit four CAA section 169A(g)(1) factors, such
as visibility, when assessing sources or source categories. In a
response to comment on the 2017 RHR, EPA noted that a state that elects
to consider an additional factor, such as visibility, must do so in a
reasonable way that does not undermine or nullify the role of the four
statutory factors.\7\
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\7\ EPA, Response to Comments on Protection of Visibility:
Amendments to Requirements for State Plans; Proposed Rule, December
2016, at 186 (available in the docket for this action).
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As this response to comment indicates, the consideration of any
non-statutory factor, including visibility, must be reasonable. See,
e.g., North Dakota, 730 F.3d at 766 (``EPA's review of a SIP extends
not only to whether the state considered the necessary factors in its
determination, but also to whether the determination is one that is
reasonably moored to the CAA's provisions.''). The reasonableness of a
state's visibility consideration in the four-factor analysis turns on
whether the determination is reasonably moored to the CAA visibility
provisions and how the state explained and supported its determination
in the record.
Here, we find that North Dakota's consideration of visibility in
its four-factor analysis is unreasonable and inconsistent with the CAA
and the RHR. Specifically, North Dakota rejected technically feasible
and reasonably inexpensive controls at Coyote Station and Antelope
Valley based on its unreasonable visibility improvement threshold in
considering visibility as part of the four-factor analysis.\8\ In its
SIP, North Dakota determined that no additional controls are required
for Coyote Station and Antelope Valley due to ``insignificant''
visibility improvement when looking at the change in the RPG for a
Class I area (Lostwood and Theodore Roosevelt) from the addition of
potential controls. This determination was based on an interpretation
that CAA section 169A requires a change in RPG of 1.0 dv improvement
from the addition of controls at a single Class I area before that
control is required to make ``reasonable progress.'' However, this
interpretation is unreasonable and inconsistent with the CAA.
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\8\ 40 CFR 51.308(f)(2)(i).
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Congress mandated the national goal of remedying of existing and
preventing future visibility impairment air pollution from
anthropogenic sources.\9\ In American Corn Growers Ass'n v. EPA, 291
F.3d 1 (D.C. Cir. 2002), the D.C. Circuit stated that ``[t]he statutory
goal enunciated in Sec. 169A(a)(1) is quite clear: `the prevention of
any future, and the remedying of any existing, impairment of
visibility.' . . . [Therefore, agency] regulations that aim to remedy
any existing impairment of visibility and prevent any future
impairment--as the statute commands--will of necessity aim to achieve a
state of natural visibility. There is no material inconsistency between
the statutory and regulatory goals, for the latter merely elucidates
the former.'' Id. at 10. Therefore, as outlined throughout our proposal
and this final document, the EPA is within its authority to disapprove
North Dakota's long-term strategy for not including the necessary
measures. Specifically, North Dakota's consideration of visibility
requiring a change in RPG of 1.0 dv improvement at a single Class I
area to necessitate the imposition of additional controls under
reasonable progress effectively undermines and nullifies the
Congressionally mandated national goal and the reasonable progress
four-factor analysis requirements enumerated in CAA sections 169A(a)(1)
and (g)(1). There are 56,025 anthropogenic industrial sources (electric
generating units (EGU), oil and gas, and other industrial point (non-
EGU) sources) in the United States that contribute to Lostwood, which
is the closest Class I area to the sources evaluated by North
Dakota.\10\ North Dakota rejected feasible and reasonably inexpensive
($400/ton-$1,800/ton) controls at Coyote Station and Antelope Valley
under two control scenarios due to asserted non-visible and therefore
ostensibly ``insignificant'' visibility improvement (less than 1.0 dv
change in RPG visibility improvement) at a Class I area for the second
planning period. However, North Dakota's analysis showed that both
potential control scenarios were feasible and reasonably inexpensive
and resulted in either a 10% or 25% greater visibility improvement than
existing on-the-books controls for this planning period at Lostwood.
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\9\ CAA section 169A(a)(1).
\10\ Censara AOI spreadsheet titled ``Appendix C-1_AOI2016EI-
tool.xlsx.''
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In particular, North Dakota's visibility improvement analysis
projected visibility improvement from existing
[[Page 95129]]
controls in North Dakota to be 0.4 dv at Lostwood for this 10-year
planning period. North Dakota considered two modeling runs to assess
visibility impact of controls: Potential Additional Control Scenario 1
(``PAC1:'' Replacement of the SO<INF>2</INF> absorber at $1,800/ton and
installation of SNCR for NO<INF>X</INF> at $1,700/ton at Coyote Station
as well as increasing the stoichiometric ratio on existing FGD for
SO<INF>2</INF> emission reductions at $700/ton at Antelope Valley) and
Potential Additional Control Scenario 2 (``PAC2:'' FGD modification for
SO<INF>2</INF> emission reductions ($400/ton) at Coyote Station). Based
on North Dakota's analysis, PAC1 showed an additional 0.1 dv visibility
improvement at Lostwood, with control costs ranging from $700/ton-
$1,700/ton, resulting in a projected 25% visibility improvement at
Lostwood for this planning period. Under PAC2, North Dakota's SIP
showed an additional 0.04 dv projected visibility improvement at $400/
ton, which would result in a projected 10% visibility improvement at
Lostwood for this planning period. North Dakota rejected both control
scenarios due to their lack of ``significant'' visibility improvement
or change in RPG.
In response to comments on our 2017 RHR, we reemphasized that
achieving reasonable progress will depend upon obtaining aggregate
reductions from possibly thousands of sources, and thus, rejecting a
control measure because its effect on the RPG is subjectively assessed
as ``not meaningful'' when that control is identified as feasible and
relatively inexpensive under the four statutory factors would be
inappropriate. We stated:
The commenter's second suggestion, that states should be able to
reject ``costly'' control measures if the RPG for the most impaired
days is not ``meaningfully'' different than current visibility
conditions, is counterintuitive and at odds with the purpose of the
visibility program. In this situation, the state should take a second
look to see whether more effective controls or additional measures are
available and reasonable. Whether the state takes this second look or
not, it may not abandon the controls it has already determined are
reasonable based on the four factors. Regional haze is visibility
impairment that is caused by the emission of air pollutants from
numerous sources located over a wide geographic area. At any given
Class I area, hundreds or even thousands of individual sources may
contribute to regional haze. Thus, it would not be appropriate for a
state to reject a control measure (or measures) because its effect on
the RPG is subjectively assessed as not ``meaningful.'' Also, for Class
I areas where visibility conditions are considerably worse than natural
conditions because of continuing anthropogenic impairment from numerous
sources, the logarithmic nature of the deciview index makes the effect
of a control measure on the value of the RPG less than its effect would
be if visibility conditions at the Class I area were better. Thus, if a
state could reject a control measure based on its individual effect on
the RPG, the state would be more likely to reject those measures that
are necessary to make reasonable progress at the dirtiest Class I
areas, which would thwart Congress' national goal (82 FR 3078, 3093;
Jan. 10, 2017).
North Dakota's approach in considering visibility under the four-
factor analysis effectively undermines and nullifies Congressional
intent, since there is no scenario for this or subsequent planning
periods under which controls to improve visibility would ever be
required under the CAA visibility program, no matter how low the cost
since no one source impairs visibility at a single Class I area (e.g.
Lostwood and Theodore Roosevelt National Park) above 1.0 dv. This
conflicts with the CAA's stated national visibility goal of elimination
of impairment from manmade sources and thus, North Dakota's
consideration of visibility is improper. Specifically, North Dakota's
determination to reject feasible and reasonably inexpensive controls at
Coyote Station and Antelope Valley was improper. North Dakota's own
analysis shows significant visibility improvement from additional
controls at Coyote Station and Antelope Valley compared against the
visibility improvement from all sources that contribute to visibility
impairment at Lostwood and/or Theodore Roosevelt National Park during
this planning period.
To explore this point further, the EPA included in the docket to
this action a Technical Appendix, which examines, using Western
Regional Air Partnership (WRAP) data, the total anthropogenic nitrate
and sulfate visibility-impairment impacts on North Dakota Class I areas
from the EGU sector in North Dakota. As shown in the Technical
Appendix, North Dakota's EGU sources contribute ~22% (a significant
portion) of the total anthropogenic impairment (nitrate and sulfate
combined) on most-impaired days from all sources in the United States
at Lostwood Wilderness Area. When compared to natural conditions, this
translates to 0.92 dv.\11\ North Dakota's EGU sources contribute ~14%
(a significant portion) of the total anthropogenic impairment (nitrate
and sulfate combined) from all sources in the United States at Theodore
Roosevelt National Park. When compared to natural conditions, this
translates to 0.26 dv.\12\ These numbers demonstrate the
unreasonableness of North Dakota's position that controls must produce
a perceptible impact to a Class I area RPG, or larger than 1.0 dv, to
be necessary for reasonable progress. The EPA acknowledges the
significant impact of the North Dakota EGU sector on visibility
impairment at Lostwood Wilderness Area \13\ and Theodore Roosevelt
National Park,\14\ despite these impacts amounting to less than a 1.0
dv impact on the RPG at each Class I area. Thus, North Dakota's
threshold for determining whether visibility improvement on a Class I
area RPG necessitates new controls plainly serves to nullify the result
of a four-factor analysis, especially given the low cost of controls
rejected at Antelope Valley and Coyote Station.
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\11\ See the EPA's Technical Appendix in the docket associated
with this action.
\12\ Id.
\13\ North Dakota's EGU sources contribute ~22% (a significant
portion) of the total anthropogenic impairment (nitrate and sulfate
combined) on most-impaired days from all sources in the United
States at Lostwood Wilderness Area. See Technical Appendix.
\14\ North Dakota's EGU sources contribute ~14% (a significant
portion) of the total anthropogenic impairment (nitrate and sulfate
combined) from all sources in the United States at Theodore
Roosevelt National Park. See Technical Appendix.
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Furthermore, as we have noted previously, regional haze is caused
by hundreds or thousands of individual sources and very few remaining
sources (or even none of them) will individually have impacts as large
as a threshold that might be considered a ``perceptible'' or
``meaningful'' impact. However, these sources still contribute to
visibility impairment and have a meaningful impact in the
aggregate.\15\ Under the CAA and the RHR, each state that impacts a
Class I area must consider the four statutory factors to determine
whether additional measures are necessary for reasonable progress.
Based on the WRAP data evaluated in the proposed rule, in the Technical
Appendix, and in the RTC document, North Dakota has significant impacts
on both in-state and out-of-state Class I areas,\16\ which is one of
the bases to consider additional measures. In its analysis of
additional measures, North Dakota showed that, compared to
[[Page 95130]]
natural conditions, the controls rejected at Antelope Valley and Coyote
Station would result in a 0.29 dv reduction at Lostwood Wilderness
Area,\17\ the highest-impacted Class I area from ND sources. Comparing
this to the total impairment resulting from North Dakota EGUs at
Lostwood Wilderness Area, the controls North Dakota rejected at
Antelope Valley and Coyote Station would result in a ~32% reduction in
visibility impairment from North Dakota's EGU sector.\18\ Given that
North Dakota is by far the largest contributor to impairment at
Lostwood Wilderness Area,\19\ the EPA finds the reduction in visibility
impairment associated with these controls to be significant. In its
analysis of additional measures, North Dakota also showed that,
compared to natural conditions, the feasible and reasonably inexpensive
controls rejected at Antelope Valley and Coyote Station would result in
a 0.17 dv reduction in impairment at Theodore Roosevelt National
Park.\20\ Comparing this to the total impairment resulting from North
Dakota EGUs at Theodore Roosevelt National Park, the controls North
Dakota rejected at Antelope Valley and Coyote Station would result in a
~65% reduction in visibility impairment from North Dakota's EGU
sector.\21\ Given that North Dakota is by far the largest contributor
to impairment at Theodore Roosevelt National Park,\22\ the EPA finds
that the reduction in visibility impairment associated with
installation of these controls would be significant.
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\15\ 82 FR at 3093 (January 10, 2017).
\16\ 89 FR 56693, 56707-09 (July 10, 2024).
\17\ North Dakota's 2022 SIP Submission, appendix D.5-23.
\18\ 0.29/0.92 = ~0.32 or a 32% reduction in impairment.
\19\ See the EPA's Technical Appendix in the docket associated
with this action.
\20\ North Dakota's 2022 SIP Submission, appendix D.5-23.
\21\ 0.17/0.26 = ~0.65 or a 65% reduction in impairment.
\22\ See the EPA's Technical Appendix in the docket associated
with this action.
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In addition, North Dakota's consideration of visibility included
various technical flaws that individually, as well as collectively,
underrepresented the actual visibility improvement that might be
achieved from the addition of controls at Coyote Station and Antelope
Valley. As more fully explained in the RTC document, these technical
flaws \23\ result in an overall underestimate of the potential
visibility improvement that could be achieved by the imposition of
controls selected through the consideration of the four reasonable
progress factors set forth in CAA section 169A(g)(1) on which North
Dakota based its determination. If those errors are corrected, the
imposition of controls under either scenario at Coyote Station and/or
Antelope Valley would be greater than the anticipated 10-25% visibility
improvement from existing controls.
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\23\ As detailed in the RTC document, the technical flaws in
North Dakota's visibility improvement analysis included the
comparison to a dirty background rather than natural conditions
(North Dakota then provided updated numbers comparing to natural
conditions in response to comment on the draft plan) and using the
20% most-impaired days rather than all days to assess impacts from
individual sources. In addition, North Dakota did not consider the
visibility benefits to out-of-state Class I areas when controls at
Antelope Valley and Coyote Station also benefit those Class I areas
identified by North Dakota under CAA 169A(b)(2).
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As described in this preamble and in the RTC document, North
Dakota's consideration of visibility, namely, its selection and
application of a 1.0 dv visibility improvement threshold to reject
feasible and reasonably inexpensive controls for reasonable progress at
Antelope Valley and Coyote Station, undermines and nullifies the
results of the four-factor analyses performed by North Dakota. This is
unreasonable and inconsistent with the CAA and the RHR. Thus, EPA is
required to disapprove North Dakota's long-term strategy, as well as
the associated reasonable progress goals and FLM consultation.
III. Final Action
For the reasons stated in the proposed rule, in the RTC document,
and in this document, we are partially approving and partially
disapproving North Dakota's 2022 SIP submission.
We are disapproving the following components of North Dakota's 2022
SIP submission relating to CAA section 169A:
<bullet> Long-term strategy (40 CFR 51.308(f)(2));
<bullet> Reasonable progress goals (40 CFR 51.308(f)(3)); and
<bullet> FLM consultation (40 CFR 51.308(i)).
We are approving the following components of North Dakota's 2022
SIP submission relating to CAA section 169A:
<bullet> Calculations of baseline, current, and natural visibility
conditions, progress to date, and uniform rate of progress (40 CFR
51.308(f)(1));
<bullet> Reasonably attributable visibility impairment (40 CFR
51.308(f)(4));
<bullet> Progress report requirements (40 CFR 51.308(f)(5) and 40
CFR 51.308(g)); and
<bullet> Monitoring strategy and other implementation plan
requirements (40 CFR 51.308(f)(6)).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action partially approves and partially disapproves state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian Tribe has
demonstrated that a Tribe has jurisdiction. In those areas of Indian
country, the rule does not have Tribal implications and will not impose
substantial direct costs on Tribal governments or preempt Tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
[[Page 95131]]
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on communities with environmental justice
(EJ) concerns to the greatest extent practicable and permitted by law.
Executive Order 14096 (Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on
and supplements E.O. 12898 and defines EJ as, among other things, the
just treatment and meaningful involvement of all people, regardless of
income, race, color, national origin, or Tribal affiliation, or
disability in agency decision-making and other Federal activities that
affect human health and the environment.
The State did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA performed an EJ analysis,
as is described in the proposed action 89 FR 56693 (July 10, 2024) in
the section titled, ``Environmental Justice.'' The analysis was done
for the purpose of providing additional context and information about
this rulemaking to the public, not as a basis of the action. In
addition, there is no information in the record upon which this
decision is based inconsistent with the stated goal of E.O. 12898/14096
of achieving EJ for communities with EJ concerns.
This action is subject to the Congressional Review Act, and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 31, 2025. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Dated: November 22, 2024.
KC Becker,
Regional Administrator, Region 8.
For the reasons stated in the preamble, the Environmental
Protection Agency is amending 40 CFR part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart JJ--North Dakota
0
2. In Sec. 52.1820, the table in paragraph (e) is amended by adding an
entry for ``North Dakota State Implementation Plan for Regional Haze
(Second Implementation Period)'' at the end of the table to read as
follows:
Sec. 52.1820 Identification of plan.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
State EPA effective
Rule No. Rule title effective date date Final rule citation/date Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Dakota State Implementation Plan For Regional Haze
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
North Dakota State Implementation Plan North Dakota State 8/10/2022 1/2/2025 [insert Federal Register Excluding the sections
for Regional Haze (Second Implementation Plan for citation], 12/2/2024 disapproved in this
Implementation Period). Regional Haze action. EPA disapproved
the portions of North
Dakota's 2022 SIP
submission relating to
CAA section 169A and 40
CFR 51.308(f)(2): long-
term strategy; 40 CFR
51.308(f)(3):
reasonable progress
goals; and 40 CFR
51.308(i): FLM
consultation.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 2024-27940 Filed 11-29-24; 8:45 am]
BILLING CODE 6560-50-P
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